covenants, conditions and restrictions and ...the covenants. conditions, restrictions, uses,...
TRANSCRIPT
F . ANN RODRIGUEZ, RECORDERRECORDED BY : RAA
DEPUTY RECORDER2484
ROOF
DOCKET:PAGE:NO . OF PAGES:SEQUENCE:
WPIMA CO SUBDIVISIONSWILL PICK UP
1023133244
9602425802/14/9609 :15 :00REST
TUCSON
AZ 85701PICKUPAMOUNT PAID
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANT AND RESERVATION OF EASEMENTS
MONUMENT VISTA -
DATED:
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ARTICLE IDEFINITIONS
Section 1 .01 "Articles" 2Section 1 .02 "Association " 2Section 1 .03 "Board" 2Section 1 04 "By-Laws" 2Section 1 .05 "Cluster Open Space (Functional)" 2Section 1 .06 "Common Areas" or "Common Property" 2Section 1 .07 `Declarant" 2Section 1 .08 "Declaration" or Restri :tions" 3Section 1 .09 "Developer" 3Section 1 .10 "Dwelling Unit' or "Unit" 3Section 1 .11 "Eligible Mortgage Holder- 3Section 1 .12 "First Mortgagee" 3Section 1 .13 "Lot" or "Lots" 3Section 1 .14 "Member" 3Sectior 1 .15 `Mortgage` 3Sectior. 1 .16 "Natural Undisturbed Open Space" 3Section 1 .17 "Owner(s)" or "Homeowner(s)" 3Section 1 .18 "Person " 4Section 1 .19 "Plat" 4Section 1 .20 "Property" or `Subdivision" 4Section 1 .21 "Rules " 4
ARTICLE IIUSES AND RESTRICTIONS
Section 2 .01 Private Residential Purposes 4
Section 2 .02 Renting 5Section 2 .03 Antennas and Exterior Additions 5Section 2 .04 Solar Devices : 5Section 2 .05 Animals 5Section 2 .06 Nuisances 5Section 2 .07 Growth and Planting 6Section 2 .08 Drainag e : 6
Section 2 .09 Unsi ghtly Articles 6Section 2 .10 Trash Containers 6
Section 2 .11 Clothes Lines 7Section 2 .12 Diseases and Insects 7
Section 2 .13 Mail Boxes 7
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Section 2 .14 Vehicles/Carports/Garages 7Section 2 .15 Insurance 7Section 2 .16 Signs 8Section 2 .17 Subdividing 8Section 2 .18 Right of Inspection 8Section 2 .19 Exemption of Developer 8
ARTICLE IIIEASEMENTS, COMMON AREAS
Section 3 .01 Easement for Encroachments 9Section 3 .02 Utility Easements 9Section 3 .03 Common Areas and Easements (Association Maintained) 9Section 3 .04 Private Drainage Easements (Owner Maintained) 9Section 3 .05 Common Area Blanket Utility Easement 10Section 3 .06 Easement for Perimeter Walls and Other Improvements 10Section 3' .07 Electrical Service and Telephone Lines 11Section 3 .08 Common Walls 11
Section 4.01 Composition of Committee 12Section 4 .02 Review by Committee 13Section 4 .03 Procedures 13Section 4 .04 Vote 13Section 4 .05 Liability 13Section 4.06 Variance 13Section 4 .07 Nonconforming Architectural Improvements 14Section 4 .08 Color ; Building Materials 14Si.-tion 4 .09 Broad Discretion of Architectural and Landscape Review Committee 14Secion 4 .10 Fees 15Section 4 .11 Design Guidelines 15
ARTICLE VMAINTENANCE
Section 5 .01 Exterior Maintenance . Repair, Up-Keep and Repainting 16
ARTICLE VIASSOCIATION
Section 6 .01 Membership in the Association 17Section 6 .02 Voting Rights and Classes of Membership 17
Section 6.03 Purpose of Association 18Section 6.04 Rights and Responsibilities of Association 18Section 6 .05 Articles and By-Laws 19Section 6 .06 Transition to Board 20Section 6 .07 Authority of Board to Adopt Rules 20Section 6 .08 Non-Liability of Officials and Indemnification 21Section 6 .09 Managing Agent 21Section 6 .10 Disputes 22Section 6.11 Records and Accounting 22
ARTICLE VIIINSURANCE
Section 7 .01 Insurance Requirements 22Section 7 .02 Waiver of Subrogation ; Claims Against Declarant, etc 23Section 7 .03 Insurance Premiums 24Section 7 .04 Additional Optional Insurance by Owner 24Section 7 .05 Condemnation/Destruction 24
ARTICLE VIIIOWNERSHIP, USE AND MANAGEMENT
OF THE COMMON PROPERTY
Section 8 .01 Owner's Easements of Enjoyment 25Section 8 .02 Conveyance of Common Areas 25Section 8 .03 Damage or Destruction of Property 25Section 8 .04 Restriction on Conveyance Of Common Areas and Facilities 26Section 8 .05 Restriction on Further Subdividing or Resubdividing 26Section 8 .06 Payment of Taxes or Insurance by Mortgagees 27
ARTICLE IXCOVENANTS FOR MAINTENANCE ASSESSMENTS
Section 9 .01 Creation of the Lien and Personal Obligation to Pay Assessments 27Section 9.02 Purpose of Assessments 27Section 9 .03 Maximum Annual Assessment Section 9 .04 Special Assessment for Improvements 28Section 9 .05 Notice and Quorum for an Action AuthorizedSection 9 .06 Uniform Rate of Assess :nent 29Section 9 .07 Date of Commencement of Annual Assessments : Due Dates 29Section 9 .08 Effect of Non-Payment of Assessments ; Remedies of the Association 30Section 9.09 No Exemption of Owner 32Section 9 .10 Subordination of the Lien to Mort gagesSection 9 .11 Mortgage Protection and Additional Assessment as Common Expense 33
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ARTICLE XGENERAL PROVISIONS
Section 10 .01 Tenn 35
Section 10 .02 Amendments 35
Section 10.03 Enforcement and Non-Waiver 36
Section 10.04 Construction 37
Section 10 .05 Delivery of Notices and Documents 38
Section 10.06 Binding Effect 38
Section 10.07 Annexation 39
Section 10 .08 FHA/VA Approval 39
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
MONUMENT VISTA
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF MONUMENT VISTA is made on the date hereinafter set forth by TITLE GUARANTY
AGENCY OF ARIZONA. INC., an Arizona corporation, as Trustee under Trust No . T-1283,
hereinafter referred to as `Declarant".
WITNESSETH:
WHEREAS, Declarant is the ,Owner of certain real property in the County of Pima,
State of Arizona, which is more particularly described as:
Monument Vista Lots I through 106 and Common Areas "A" and "B", asubdivision of Pima County, Arizona, as recorded in Book t of Maps andPlats at page ]in the Office of the Pima County Recorder's Office, PimaCounty, Arizona.
which real property shall hereinafter be referred to as the 'Trope Sty" ; and
WHEREAS, Declarant proposes to construct improvements upon the Property, and .)
sell and convey the same, subject to the covenants, restrictions, uses, limitations, obligations.
easements, equitable servitudes . charges and liens hereinafter set forth, each of which is for the
benefit of the Property and the subsequent owners thereof.
NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held,
conveyed, encumbered, leased and used subject to the following covenants, conditions.
restrictions . uses, limitations, obligations . easements, equitable servitudes, charges and liens.
all of which are for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Property . The covenants . conditions, restrictions, uses, limitations,
obligations, easements and equitable servitudes . charges and liens, set forth herein shall run with
the Property ; shall be binding upon all persons having or acquiring any interest in the Property
or any part thereof; shall inure to the benefit t :f, be bind i ng upon, and enforceable by all
Owners . Declarant, the Association and their successors in interest .
No provision contained herein shall be construed to prevent or limit Developer's right
to complete development of the Property and construction of improvements thereon, nor
Developer's right to maintain model homes, construction, sales or leasing offices, nearby
parking area or similar facilities on the Property, nor Developer's right to post signs incidental
to construction, sales or leasing . no Developer's right to dc anything that is reasonably necessary
and proper for the full development of the Property.
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the following words and phrases when
used herein shall have the meanings hereinafter assigned.
Section 1 .01 "Articles" shall mean the Articles of Incorporation of the Association and
amendments thereto which are or shall be filed in the Office of the Arizona Corporation
Commission.
Section 1 .02 "Association" shall mean and refer to MONUMENT VISTA
HOMEOWNERS ASSOCIATION. an Arizona non-profit corporation, which shall be formed
prior to the conveyance of the first Lot, its successors and assigns.
Section 1 .03 "Board" shall mean the Board of Directors cf the Association.
Section 1 .04 "By-Laws" shall mean the By-Laws of the Association, together with any
amendments thereto.
Section 1 .05 "Cluster Open Space (Functional)" shall mean a land area, set aside for
the conservation of permanent . open space . for the exclusive use and enjoyment of the Owners.
Section 1 .06 "Common Areas" or "Common Property" shall mean all real property
designated as Common Area -A" (NATURAL UNDISTURBED OPEN SPACE) and Common
Area "B- (CLUSTER OPEN SPACE [FUNCTIONAL]) on the Plat as defined in Section 1 .19
hereof, whether improved or unimproved, owned by the Association for the common use and
enjoyment of the Owners . Common Property shall also include any real or personal property
now or hereinafter owned by or leased by the Association.
Section 1 .07 "Declarant" means TITLE GUARANTY AGENCY OF ARIZONA . INC .,
an Arizona corporation . as TrL,te°e under Trust No . T-1353 . its nominees, successors or assigns
while title holder of any Lot either as the original Owner or O•.vner by reacquisition .
Section 1 .08 "Declaration" or "Restrictions" shall mean this instrument and any
amendment hereto or restatement hereof.
Section 1 .09 "Developer" shall mean R . B . PRICE & COMPANY, INC ., an Arizona
corporation, its nominees, successors or assigns.
Section 1 .10 "Dwelling Unit" or "Unit" shall mean any improvements placed within
the confines of any Lot.
Section 1 .11 "Eligible Mortgage Holder" shall mean a holder of a First Mortgage on
a Lot who has requested notice of certain actions in accordance with Section 9 .11 I.
Section 1 .12 "First Mortgagee" shall mean the holder of any mortgage under which the
interest of any Owner of a Lot is encumbered and which mortgage has first and paramount
priority (referred to herein as a First Mortgage), subject only to the lien of general or ad
valorem taxes and assessments.
Section 1 .13 "Lot" or "Lots " shall mean and refer to any numbered parcel of real
property shown on the Plat, together with the Dwelling Unit, if any, thereon.
Section 1 .14 "Member" shall mean and refer to every person and/or entity who holds
membership in the Association.
Section 1 .15 "Mortgage" shall mean any mortgage, c r eed of trust or other security
instrument by which a Lot or any part thereof is encumbered.
Section 1 .16 "Natural Undisturbed Open Space" shall mean a land area, unimproved
and not occupied by any structures or manmade elements, set aside for the conservation of
permanent, undisturbed open space, for the exclusive use and enjoyment of the Owners.
Section 1 .17 "Owner(s)" or "Homeowner(s)" shall mean a record holder of beneficial
or equitable title, and legal title if legal title has merged with the beneficial or equitable title.
to the fee simple interest in ally Lot . Owner shall not include : (a) persons having an interest in
a i nt merely as security for the performance of an obligation ; or (b) a Tenant of a Lot . Owner
shall include a purchaser under a contract for the conveyance of real property, a contract for
deed, a contract to convey, an agreement fcr sale, or any similar contract throu gh which seller
has conveyed to a purchaser equitable title in a Lot under which the seller is obligated to convey
to the purchaser the remainder of the seller's title in the Lot, whether le gal or equitable, upon
payment in full of all monies under'the contract . Owner shall not include a purchaser under a
purchase contract and receipt . escrow instructions, or similar executory contract that is intended
to control the rights and obligations of the parties to executory contracts pending the closing of
a sale and purchase transaction. In the case of Lots, the fee simple title to which is vested in a
trustee pursuant to a subdivision trust agreement or similar agreement . the beneficiary of any
such trust who is entitled to possession of the Lot shall be deemed to be the Owner . If fee simple
title to a Lot is vested in a trustee pursuant to A.R.S. §§ 33-801 et. EQ. . for purposes of this
Declaration legal title shall be deemed to be held by the trustor or the trustor's successor of
record, and not by the trustee . An Owner shall include any person who holds record title to a
Lot in joint ownership or as an undivided fee interest;
Section 1 .18 "Person" shall mean a natural individual or any other entity with the legal
right to hold title to real property.
Section 1 .19 "Plat" shall mean, collectively, the subdivision plat recorded in Book
of Maps and Plats at Page
in the office of the County Recorder of Pi!na County, Arizona,
under the name - Monument Vista'.
Section 1 .20 "Property" or "Subdivision" shall mean all that real property identified
in the Plat.
Section 1 .21 "Rules" shall mean the rules adopted by the Board pursuant to the
By-Laws .
ARTICLE II
USES AND RESTRICTIONS
All property within the subdivision shall be held, used and enjoyed, subject to the
following limitations and restrictions:
Section 2 .01 Private Residential Purposes . Dwelling Units shall be occupied and used
by the respective Owners solely for private single family residential use of the Owner, his/her
family . tenants and social guests and for-no other purpose . No gainful occupation . profession.
trade or other non-residential use shall be conducted on the Property, except that Declarant or
Developer may maintain sales offices . construction offices and sales models on the Property.
Sales offices, sales models and construction offices utilized by the Declarant or Developer on
the Property heel not be owned by either Declarant or Developer, and further . may be utilized
as sales ;:yodels for the benefit of other subdivisions of either Declarant or Developer .
Section 2 .02 Renting . Each Owner shall have the right to lease or rent his/her Dwelling
Unit ; provided, however, that any lease agreement, including any agreement to lease the
Dwelling Unit on a month to month basis, must be in writing and must provide that the failure
of any lessee or tenant to comply with the Rules, By-Laws, Articles, Design Guidelines and
provisions of this Declaration shall be a default under the lease . Any lease agreement shall be
for a period of not less than thirty (30) days.
Section 2 .1. 3 Antennas and Exterior Additions . No exterior antennas or other devices
for the transmission or reception of radio and television signals shall be erected or maintained
on the Property without prior written authorization of the Architectural and Landscape Review
Committee . Further, no exterior devices, additions, structures or accessory buildings other than
initially installed by Developer shall be constructed on the exterior of a Dwelling Unit without
the written authorization of the Architectural and Landscape Review Committee . No roof
mounted equipment shall be permitted.
Section 2.04 Solar Devices. No solar devices, of any type, shall be erected or installed
on any Lot without the prior review and written approval of the Architectural and Landscape
Review Committee as set forth in Article IV herein . The Architectural and Landscape Review
Committee shall not prohibit the installation of solar devices on any Lot, however, it may
require reasonable screening and maintain control of all color selections except for solar
collection surfaces.
Section 2 .05 Animals. No animals of any kind shall be raised, bred, or kept on the
Property, except that a reasonable number of generally recognized house or yard pets may be
kept provided that they are not kept . bred or maintained for any commercial purpose . No
animals shall be allowed to become a nuisance . A "reasonable number" as used in this Section
shall ordinarily mean no more than two pets per Dwelling Unit : provided, however, the Board
may determine that a reasonable number in any instance may be more or less . Upon the written
request of any Owner, the Board shall conclusively determine . in its sole and absolute discretion.
whether . for the purposes of this Section . a particular animal is a generally recognized house or
yard pet or a nuisance . or whether the number of animals is reasonable.
Section 2 .06 Nuisances . After completion of construction of all Dwelling Units and
landscaping (if Lots . on rubbish or debris of any kind shall he placed or permitted to accumulate
upon the Property . and no odors shall be permitted to arise therefrom so as to render any portion
c
of the Property unsanitary, unsightly, offensive or detrimental to any other property in the
vicinity thereof or to its occupants . Without limiting the generality of any of the foregoing
provisions, no exterior speakers, horns, whistles, bells or other sound devices, except security
devices used exclusively for security purposes, shall be located, used or placed on the Property
without the prior written approval of the Board . The Board in its sole discretion shall have the
right to determine the existence of any such nuisance.
Section 2 .07 Growth and Planting . All landscaping on the Property shall consist of low
water use and low pollen producing vegetation as listed in the approved plants lists in the Design
Guidelines of Monument Vista, or otherwise approved in writing by the Architectural and
Landscape Review Committee.
Section 2 .08 Drainage . There shall be no interference with the established drainage
pattern over any Property, except by Declarant in the course of development, unless adequate
provision is made for proper drainage conforming to Pima County regulations, ordinances and
drainage criteria and is approved by the applicable governing body or its duly appointed
representative . For purposes hereof, "established drainage" is defined as the drainage which
exists at the time the overall grading of the Pro f :-rr is completed . or which is shown on the Plat
or on any plans conforming to applicable rules, regulations, ordinances and drainage criteria
approved by the applicable governing body or its duly appointed -epresentative.
Se_tion 2 .09 Unsightly Articles . No unsightly articles shall be permitted to remain so
as to be visible from neighboring property or from the street or public way . Landscape clippings
shall be promptly discarded off the Property, and all machinery, storage piles, wood piles,
garbage or trash containers shall be kept within an enclosed structure or appropriately screened
from view of neighboring property or from streets or public way except when necessary to effect
such collection, provided, however, any suet structure or screen shall he subject to the
Architectural and Landscape Review Committee's review and prior written approval pursuant
to Article IV . The Architectural and Landscape Review Committee shall have sole discretion in
determining if any activity by an Owner is in violation of this Section.
Section 2 .10 Trash Containers . No garbage or trash shall be placed or kept on the
Property, except in covered containers of a type . size and style which have been approved in
writing by the Architectural am! Landscape Review Committee or are required by governmental
authorities . All rubbish, trash or garbage shall be removed from the Lots and shall not he
a
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allowed to accumulate thereon . No incinerators shall he allowed . Trash/garbage containers shall
be placed at curb side only on days of scheduled collection and shall be removed from view on
the same day of collection . The Architectural and Landscape Review Committee shall have sole
discretion in determining if any activity by an Owner is a violation of this Section.
Section 2.11 Clothes Lines . No exterior clothes lines shall be erected or maintained, and
there shall be no outside laundering or drying of clothes.
Section 2 .12 Diseases and Insects . No Owner shall permit anything or any condition to
exist upon the Property which shall induce, breed or harbor infectious plant diseases or noxious
insects .
Section 2 .13 Mail Boxes . The Architectural and Landscape Review Committee shall
determine the location, color, size, design . lettering . and al l other particulars of all mail and
paper delivery boxes, and standards and brackets and name si : ns for same in order that the area
be strictly uniform in appearance with respect thereto.
Section 2 .14 Vehicles/Carports/Garages . The use of all vehicles, including but not
limited to trucks, automobiles, bicycles and motorcycles shall be subject to the Rules, which may
prohibit or limit the use thereof, provide parking regulations, or generally regulate same . Any
and all items stored in a carport/garage area shall be stored so as to conceal same from view
from adjoining property . or from the streets or public way, and further, in the case of a garage,
garage doors shall be kept closed at all times, except as may be reasonably necessary for
ingress, egress and normal day-to-day activities which require the utilization of the :;arage . The
carport/garage area of each Dwelling Unit is for the sole purpose of parking vehicles and storage
as herein provided, and the enclosure of any carport/garage area for utilization as living area
within a Dwelling Unit is prohibited . At no time shall there he any outside storage of motor
vehicles in stages of construction . reconstruction, modification or rebuilding of parts of motor
vehicles such as frames, bodies . engines or other parts or accessories . Further, the storage or
parking of any recreational vehicle, commercial vehicle or hoat, other than completely within
Owner's carport/garage is prohibited.
Section 2 .13 Insurance Rates . Nothing shall he done or kept on any Lot or Common
Area which will result in the cancellat ion'of insurance on any such property or which would he
in violation of . . law .
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Section 2 .16 Signs . No signs of any kind shall be displayed without tae prior written
approval of the Architectural and Landscape Review Committee except:
A. Such signs as may be required by legal pnx:eedings:
B. Such signs as may be used by Developer or Declarant : and
C. Such signs as may be approved by the Architectural and LandscapeReview Committee indicating a Dwelling Unit is for sale or lease.
Where the Board's approval is required . it shall approve the nature . composition.
number . size and location of all signs . unless excepted hereunder.
Section 2 .17 Subdividing . None of the Lots shall he resubdivided into smaller Lots or
conveyed or encumbered iu less than the full original dimensions as shown on the Plat of this
development . Nothing contained in this Section shall prevent the dedication, conveyance or
granting of use of any of the easements set forth in Article III below, or of any easements over.
across and under portions of lots for public or quasi-public use for purposes which benefit any
lot owners.
Section 2 .18 Right of Inspection . During reasonable hours . any member of the Board.
or any authorized representative of any of them shall have the right upon reasonable notice to
the Owner of a Dwelling. Unit to enter upon and inspect any Property within the subdivision
(except the interior of Dwelling Units) . fur the purpose of ascertaining whether or not the
provisions of this Declaration have peen or are being complied with, and such persons shall not
he deemed ;guilty of trespass by reason of such entry.
Section 2 .19 Exemption of Developer . Nothing in this Declaration shall limit the right
of Developer or Dci!;.rant to complete cxca etion . grading and construction of improvements
to . .-y Property within the subdivision, or to alter the fore going or to construct such additional
impr itements as Developer deems advisable in the course of development of the Property so
long am Lis therein remains unsold . Further . nothing in this Declaration shall limn the right
of Developer or Declarant to use any structure as a sales model . sates office or construction
otliec or parking area and to place any sign, h :Inner, flag or similar method of advertisement
to promote :Iles within the Property or other property or suho iyisions of Declarant or
Des eloper l .eycloper need not seek or ohtin the Board's approval of any improvement
including landscaping constructed or placed h 1' n • .eloper tot any Property in the subdivision.
Fite rights of Declarant or Developer hereunder or elsewhere in this Declaration
he
a ss Iled h\ Declarant or Developer
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ARTICLE III
EASEMENTS, COMMON AREAS
Section 3.01 Easement for Encroachments . Each Dwelling Unit and the Common Areas
shall be subject to an easement for encroachments created by construction, settling and
overhangs. as designed or constructed by the Developer, including footings and walls thereon.
A valid easement for said encroachments and for the maintenance of same, so long as it stands.
shall and does exist . In the event Dwelling Units are partially or totally destroyed, and then
rebuilt . the Owners agree that minor encroachments on parts of the adjacent Dwelling Unit o?
Common Areas due to construction shall be permitted and that a valid easement for said
encroachments and the maintenance thereof shall exist.
Section 3 .02 Utility Easements. Shown on the plat as defined in Section 1 .19 are TEP
Esm' ts . Public Sewer & Utility Esm'ts and Public Strip Utility Esm'ts which encumber portions
of various lots . Also shown is a US West Esm't . The Public Strip Utility Esm'ts shall he
utilized for utility purposes and installation and .collection of the U .S . Mail.
Section 3.03 Common Areas and Easements (Association Maintained) . Shown on the
Plat as defined in Section 1 .19 is Common Area -A - (NATURAL UNDISTURBED OPEN
SPACE) and Common Area II - (CLUSTER OPEN SPACE IFUNCTIONALD) . Also shown
on the Plat is a 1' Private No Access Esnr't . All maintenance of said Common Areas/Easements
shall be performed by the Association . and in furtherance thereof. the Association shall have the
right to enter upon said Common Areas/Easements for the purpose of performing such
maintenance.
Section 3 .04 Private Drainage Easements (Owner Maintained) . Private drainage
easements may he established as sho.% on the Plat or by separate instrument duly recorded over
and across certain Lots for the exclusive use and benefit of other Lot Owners . Each Owner of
a Lot on which a private drainage easement is established and which is not maintained by the
Association as provided for in Section 3 .03 above shall he responsible for maintaining that
easement and keeping it free and clear from all debris, refuse and any oilier foreign matter
which shall m .in way interfere v ith or hinder the free Clow of %kilter in the easement as
originally constructed . In the event of the failure of any Lot Owner to so maintain an easement.
other Lot O'.e tiers henetitted I .> such 'easements shall have no cause of action against the
.\• %oeiatior ► . but sha!I proceed 't+lel :1 a,_aittst Ihat Lot Ueei ► cr.
t)
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Section 3 .05 Common Area Blanket Utility Easement . In addition to those specific
easements shown on the Plat, there is hereby created a blanket easement upon, across, over and
under the Common Areas for ingress . egress, installation, replacing, repairing and maintaining
all utility and service lines and systems . including . but not limited to . water, sewers, g as.
telephones, electricity, television cable or communications lines and systems . etc . By virtue of
this easement, it shall he expressly permissible for the providing utility or service company to
Install and maintain facilities and equipment on the Common Areas . Notwithstanding anything
to the contrary contained in this Section . no sewers, electrical lints . water lines, or other utilities
or service lines may be installed or relocated on the Property except as initially designed and
installed by Developer or thereafter approved by the Board . This easement shall in no way affect
any other recorded easements on the Property . In no event shall any portion of the above
mentioned easements for utilities be construed to authorize the placing or installing of sewers,
electrical lines, water lines or other utilities under any permanent building structure constructed
on the Property . This easement shall be limited to improvements as originally constructed.
There shall be an access easement for the delivery and collection of the U .S . Mail.
Section 3 .06 Easement for Perimeter Walls and Other Improvements . Developer may
construct perimeter walls and other improvements, including but not limited to . driveways.
walkways, exterior lighting (metered to a particular Dwelling Unit), drainage structures . etc ..
as a part of. or for the use of. a particular Dwelling Unit which may encroach upon or
encompass portions of the Common Areas or adjacent lots . Wherever such encroachments on
the Common Areas or adjacent lots should occur . the Owner of the Dwelling Unit in v olved shall
have, subject to the conditions hereinafter set forth . a perpetual permanent right for such
perimeter walls to encompass portions of the Common Areas or adjacent lots and for such other
improvements to encroach upon portions of the Common Areas or adjacent lots . In consideration
thereof, such Owners agree to maintain and keep in repair any improvements encroaching upon
the Common Areas or adjacent lots which were constructed kit the use of their Lot . In the event
any such Owners should make demand upon the Association to maintain any Common Areas
within the confines of such per :meter \vall, or to maintain and keep in repair any improvements
encroaching upon the Common Areas or adjacent has which is the responsibility of the Owner
to repair as set th+rth in Section 5 .01 A of this Declaration . then the Association or adjacent lot
Owner . as the case may be . shall have the absolute right . and mas cause the Owner making such
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demand to remove at his/her expense, any improvement, incluiliag the perimeter wail.
encroaching upon the Common Areas or adjacent lot . and to replace and rebuild such
improvement or perimeter wall as to be within sur ;u Owner's Lot . Declarant hereby
acknowledges that the right granted Owners under this Station is a property right of the Owner,
and such property right may not be revoked or rescinded by Declarant . its successors or assigns.
or by the Association, once such right has vested in an Owner, except upon an Owner's breach
of' the conditions set forth in the preceding sentence.
Section 3 .07 Electri^al Service and Telephone Lines. All electrical service and
telephone lines shall be placed underground and no outside electrical lines shall be placed
overhead, except existing overhead lines : provided that no provisions hereof shall prohibit the
erection of temporary power or telephone structures incidental to construction.
Section 3.08 Common Walls . The rights and duties of Owners with respect to common
walls or fences shall be as follows:
A. Each wall, including patio walls and fences . which is constructed '.s a part
of the original construction of the Dwelling Unit any part of which is placed on or over the
dividing line between separate Dwelling Units . shall constitute a common A l . With respect
to an). such wall, each of the adjoining Unit Owners shall assume the burden and be entitled to
the benefits recited in this Section 3 .08 and to the extent not inconsistent herewith, the general
rules of law regarding common walls shall he applied thereto.
B. The Owners of contiguous Dwelling Units who have a common wall shall
have reciprocal easements for support and an equal right to use such wall provided that such use
by one Owner does not interfere with the use and enjoyment of same by the other Owner.
.
C. Unle . s other pros'isions of this Section 3 .08 are applicable . the costs of
reasonable repair and maintenance of a common wall shall be shared equally by the Owners who
make use of the common wail in proportion to such use.
D. In the event any common wall is damaged or destroyed through the act of
one adjoining Owner . or any of his/he r guests or agents or memiers of his/her family so as to
deprive the other Owner of the full use and enjoyment of such wall, then the first of such
Owners . iC required under local la s . shall forthwith proceed to rebuild and repair the same to
as good condition as tiunterly without cos, to the other Owner .
E. In the event any common wall is damaged or destroyed by some cause
other than the act of one of the adjoining Owners . his/ her agents, guests or family (including
ordinary wear and tear and deterioration from lapse of time) . then in such event, both such
adjoining Owners shall, if required under local law, proceed forthwith to rebuild or repair the
same to as good condition as formerly at their joint and equal expense.
F. Notwithstanding anything to the contrary herein contained, there shall be
no impairment of the structural integrity of any common wall without prior consent of the
Board . In addition to meeting the other requirements of these Restrictions and of any building
code or similar regulations or ordinances, any Owner proposing to modify . make additions to
or rebuild his/her Dwelling Unit in any manner which requires the extension or other alteration
of any common '.all shall first obtain the written consent of the Board which shall determine the
adjoining Owner's preference concerning the proposed modification, extension or alteration of
the common wall prior to giving any written consent thereto.
G. In the event of a dispute between Owners with respect to the repair or
rebuilding of a common wall or with respect to the sharing of cost thereof, then upon written
request of one of such Owners delivered to the Association . the matter shall be heard and
determined by the Board .
ARTICLE IV
ARCHITEC'URAL AND LANDSCAPE REVIEW CO, . MMEE
Section 4 .01 Composition of Committee . The Architectural and Landscape Review
Committee shall consist of three (3) to a maximum of seven (7) persons appointed by the Board:
provided . however . 'hat except •6s otherwise provided . until all Lots have been conveyed to the
first Owner thereof (other thin Declarant) . Declarant wail appoint the Architectural :end
1 .:mdscape Review Committee without a meeting and without a vote of the Members, and during
.aid perio(l . no election of the Members of the Committee shall he had unless Declarant has in
n riling relinquished its right of exclusive appointment . A majority of the Committee may
designate a representative to act for it . The Declarant hereto appoints The Planning Center.
450 W . Rise) Redondo . 'fucwn . Arizona . as the initial Architectural and Landscape Review
Conttnittee
Section 4.02 Review by Committee . No structure, improvement, or any attachment to
an existing structure shall be made or constructed upon the Property (except by the Association
upon the Common Areas) . and no alteration of the exterior of :t structure or improvement shall
he made . and no change in the final grade . nor the installation of any landscaping to any part
of the Property, except the Common Areas, shall be performed, unless complete plans and
specifications . including a construction schedule therefor . shall have first been submitted to and
approved in writing by the Architectural and Landscape Review Committee . The Architectural
and Landscape Review Committee shall exercise its best judgment to the end that all
attachments, improvements, construction . landscaping . and alterations to structures on lands
located within the Property (collectively referred to herein as -Architectural Improvements")
conform to and harmonize with the existing surroundings and structures . Decisions of the
Architectural and Landscape Review Committee are binding and conclusive.
Section 1 .03 Procedures. The Architectural and Landscape Review Committee shall, in
writing, approve or disapprove all plans within thirty (30) days after submission and issuance
by the Association of a receipt therefor . In the event the Architectural and Landscape Review
Committee fails to approve or disapprove such design and location within thirty (30) days after
said plans and specifications have been submitted to it . approval shall be deemed denied, except
that the party submitting the plans may resubmit the plans.
Section 4.04 Vote . A majority vote of the Architectural and Landscape Review
Committee is required to approve a proposed change or improvement, unless the Committee has
designated a representative to act for it . in which case the decision of the representative shall
control .
Section 4 .05 Liability . The Architectural and Landscape Review Committee and the
members thereof shall nor he liahle in damages to any person submitting requests for approvel
or to any Owner by reason of any action . failure to act . approval . disapproval . or failure to
err :toe or disapprove in regard to any matter within its jurisdiction hereunder.
Section 4 .06 Variance . The Architectural and Landscape Review Committee may grant
reasonable % aretllces or adt'utnlelit . from any conditions and restrictions imposed h\ this Article
or Article II hereof. or the I)esi_n Guidelines . in order to overcome praclic ; .l difficulties and
proem r:Ilneaes s .Is\ hardships arising by re :eon of the applieallen of Inc •e s trictlorls contained
in this •\ii! . l~ e
Arnd t: II hereon or the Design Guidelines . Such variances or .Khe.l;lleni . •Il ;lli
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he in writing, and shall he granted only in case the granting thereof shall not be materially
detrimental or injurious to the Property . and shall be subject to conformance with applicable
building codes : and shall not militate against the general intent and purpose hereof.
Section 4 .07 Nonconforming Architectural Improvements. In the event that the
Architectural Improvements do not, upon the proposed date set forth in the construction
schedule, conform to the plans submitted to and approved by the Architectural and Landscape
Review Committee, the Architectural and Landscape Review Committee shall give written notice
to the Owner of the property upon which such Architectural Improvements have been made.
Such notice shall specify the nature of the nonconformity of the Architectural Improvements and
shall grant the Owner a hearing before the Architectural and Landscape Review Committee . If
an Owner has not, within 60 days of the mailing or delivery of the written notice, corrected the
nonconformity of the Architectural Improvement, then the Architectural ant' Landscape Review
Committee shall have the right and an easement to direct its agents . employees or contractors
to enter upon the said Owner's property for the purpose of making any or all of such
improvements, alterations . or repairs as are necessary to bring the •;'vner's Architectural
Improvements into conformity with the plans submitted to and approved by t : :e Architectural and
Landscape Review Committee . All costs incurred by the Association in the course of the
Architectural and Landscape Review Committee's efforts to bring nonconforming Architectural
Improvements into conformity with the approved plans as provided above . including costs of
!oho- . ,aaterials and all associated administrative costs reasonably incurred by the Association
in connection therewith, shall he added to and become part of the assessment to which such
Owner's Lot is subject and shall become a lien on such Owner's Lot and the improvements
thereon, and shall he enforceable and collected as provided for in Article IX hereof.
Section 4 .08 Color ; Building Materials . Without limiting the foregoing . no color
schemes . materials . composition or products . whether in original construction or in later
changes . shall be used or permitted without the prior written approval of the Architectural and
Landscape Review Committee
Section 4 .09 Broad Discretion of Architectural and Landscape Review Committee.
In reviewing plans tier aitera ;ions . nn'difieatiuns . additions or other changes to a structure upon
a I .o
the .1rch'tectural and land'cape Retie :: Committer shall e .xereise irs discretion in
u C .'till~_ '.l iletht.r
.ttl .ilt .:t . .tti'tl *'r iii 'dt11~ :111t H1 k IS! harmon y ll lth the ttler:ilI >cliet e tai
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the Property . The Architectural and Landscape Review Committee shall have the right to deny
alterations or modifications for purely aesthetic reasons if the Architectural and Landscape
Review Committee considers the alteration or modification to be unattractive in relation to the
overall scheme of development, or if the Architectural and Landscape Review Committee
considers the alteration or modification to be a nuisance or upset of design, or if the
Architectural and Landscape Review Committee considers the alteration or modification to be
in contrast to or out of harmony with the style of existing structures, or if the physical views of
the Property will be disrupted by the alteration or modification . The Architectural and Landscape
Review Committee may elicit the opinion of other Owners . including the neighbors of the Owner
submitting the plan for alteration or modification, as to the conformity and harmony of the
proposed plan with the overall scheme of development, and the effect that the proposed plan
might have or. the physical views of other Owners . After eliciting these opinions, the
Architectural and Landscape Review Committee may, but need not . take them into account in
making its final decision of approval or disapproval of an alteration or modification to an
existing structure . While the opinion of no single Lot Owner will control a decision of the
Architectural and Landscape Review Committee, within its own discretion . the Architectural and
Landscape Review Committee may. but need not. attach whatever significance it deems
sufficient to the statements of residents and/or neighhors of the Owner submitting the proposed
alteration or modifications to an existing strheture.
Section 4 .10 Fees . The Board may establish a reasonable- processing fee to defer the
costs of the Architectural and Landscape Review Committee in considering any requests for
approvals submitted to the Architectural and Landscape Review Committee . As the initial
Archixctural and Landscape Review Committee . The Planning Center shall hill each Lot Owner
directly .
Section 4 .11 Design Guidelines . The Board, in its sole :L•seretioi . trout time to time and
suhjeet to the pros isions of this i)eclaration . may adept . am:nd .tr .d repeal design guidelines
t"t%e•:i n Guidelines - ) with respet.t to the ed' :tstruct t int of •\rehiteetural l :nprosentents . The
!)esters Guidelines shall he entr• eag le in the same ni ;irmc : as and to the >ante extent that the
l)te:i : :rattetn is enh r.eahle . pr' toed that the l)esi_ :t Guidelines shall he re :tsc,tt:thle :ltd not
tat.nnststen! tt;th the terms anU pr et tst•ins tit the Deel :ir .tti,''rt
ARTICLE V
MAINTENANCE
Section 5 .01 Exterior Maintenance, Repair, Up-Keep and Repainting.
A . Maintenance, repair . upkeep and repainting of Dwelling Units . including
all other improvements on a Lot, shall be the sole responsibility of each Owner . Except to the
extent of the Association ' s obligations under Section 5 .01 B . each Owner shall also maintain.
repair and repaint (if applicable), the interior and exterior sides of the perimeter yard walls or
fences appurtenant to his or her Lot, except that if such a wall or fence is a common wall or
fence, an Owner shall he required to repair and repaint only that portion of the wall or fence
exclusively used by that Owner. Further, each Owner shall be responsible for sewer blockage.
repair . etc. of all Dwelling Unit plumbing as well as the house connection line from the
Dwelling Unit to its connection point in the main collection sewer line in the street . Such
maintenance, repair and repainting of a Dwelling Unit and other improvements on a Lot shall
he undertaken in a manner and with such frequency as shall keep each Owner's Lot in an
attractive. well-kept and maintained Condition in conformity with all other Lots in the
Subdivision . In the event any Owner fails u' fulfill his or her obligations under this Section . the
Association . after approval by two-thirds (2!3) vote of the Board of Directors, shall have the
right through its agents and employees . to enter upon the subject property . and to repair.
maintain . and restore the Lot . including the perimeter yard walls or fences . and any other
inlpro .ements . The cost of such exterior . maintenance shall he added to and become part of the
assessment to which such Lot is subject The Board shall have the right to determine whether
or not a 1.+t is in need of maintenance . repair and upkeep. in order to conform to the standards
of the g eneral neighborhood of the Monument Vista subdivision, and the Board shall use a
reasonably high standard to determine whether such maintenance . repair and upkeep is required
.o that the Lots as a whole will reflect a high pride of ownership . Each Owner or his. her
authorized agent or the :Association . as the case ma y he, in order to conduct such maintenance.
repair or repainting . shall have the right of entry at reasonable times upon Lots adjacent to such
Owners Lot . provided reasonable nonce of such entry i. first given by such Owner to the
(hoer of the involved adjacent Lot.
13
The Association hall he responsible tor maintenance . repair and upkeep
of ;III\ ( ' ,I'nmilnn Area imnmprovemnemlts including . hut not limited to . Inalllllell.111ce . repaid :Old
upkeep of Common Areas "A" and "B" for the benefit of all Owners and the public.
Additionally, the Association shall be responsible for the maintenance . repair and upkeep any
improvements constructed on the Common Areas and Easements set forth in Section 3 .03 above.
In addition, the Association shall be responsible for maintaining and repainting any perimeter
walls or fences constructed along the boundaries of the Common Areas.
ARTICLE VI
ASSOCIATION
Section 6 .01 Membership in the Association . Each Owner (including Declarant) of a
Lot, by virtue of being an Owner, shall automatically be a Member of the Association.
Membership in the Association shall be appurtenant to each Lot owned and shall not be
transferred . pledged . or alienated in any way, except upon the transfer of ownership to a Lot.
and then only to the transferee thereof . Any attempted transfer of membership separate from the
appurtenant Lot or Lots shall be void . Any transfer of ownership of a Lot shall operate
automatically to transfer said membership to the new Owner thereof.
Section 6 .02 Voting Rights and Classes of Membership . The Association shall have
two classes of voting membership.
Class A: Class A Members shall he all Owners except Declarant, and each such Owner
shall be entitled to one vote for each Lot owned . When more than one person holds ao interest
in any Lot . all such persons shall he Members . The vote for such Lot shall he exercised as the
Owners may determine, but in no event shall more than one (I) vote be cast with respect to any
Lot owned by a Class A Member.
Class B: The Class B Member shall he Declarant who shall he entitled to three Co votes
for each Lot owned . The Class B membership shall cease and he converted to Cass A
membership on the happening of either of one of the following events . whichever occurs . :arlier
A. When the total votes outstanding in the Class A membership equal thetotal votes outstanding in the Class B membership, or
B. Three years following the conveyarce of the first Lot to an Owner otherthan the Declarant .
Any Mortgagee who acquires title to a Lot pursuant to a judgment of foreclosure
or a trustee's sale shall automatically become entitled to exercise all voting rights which the
Owner of said Lot would otherwise have had.
If any lender to whom Declarant has assigned . or hereafter assigns . as security
all or substantially all of its rights under this Declaration should succeed to the interest of the
Declarant by virtue of said assignment, the absolute voting rights of the Declarant as provided
herein shall not be terminated thereby . and such lender, or successor to such lender by
assignment or foreclosure or acceptance of a deed in lieu thereof, shall hold Declarant's
memberships and voting rights on the same terms as they were held by Declarant.
Section 6 .03 Purpose of Association . The Association is a nonprofit corporation which
will serve as the governing body for all Owners and Members for the protection . improvement,
alteration . maintenance, repair . replacement . administration and operation of the Common
Areas . t .te assessment of expenses . payment of losses, disposition of casualty insurance
proceeds, and other matters as provided in this Declaration . the Articles, the By-Laws . and the
Rules . The Association shall he legally constituted and in existence prior to the conveyance of
the first Lot to an Owner other than Declarant . The Association shall not he deemed to he
conducting a business of any kind . All funds received by the Association shall he held and
applied r.•y it for the Owners and Members in accordance with the provisions of this Declaration,
the Articles and the By-l .a .vs . The :1s_ociation shall . so long as this Declaration is in full force
and effect . take all necessar and proper action to maintain its status as an Arizona non-profit
corporation
Section 6 .04 Rights and Responsibilities of Association . The Association . through the
Board of Directors . unless speeitieall n rntvided otherwise . shall have Inc right of enft :cement
o all of the provisions hereof The Assoelation shall he responsihie for the proper and efficient-
A .
Paving real estate taxes . assessments . and other charges on the Common
Areas:
13 . Insuring . It deemed necessary and proper h . the Board . in. 'rovementsori''nally constructed by Declarant or Developer or later cunstrt.cted bythe Association on or ahaut the Common Areas anu Easente• .'s r:hic!t c .e
maintained by the Assoeiction:
C .
Hiring . tiring. supervisin g and paving employees and independent
contractors includin g . hut not lime-al to . workmen . landscapers . attorneys.
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accountants, architects, and contractors to carry out the obligations setforth herein;
1) . Maintaining such liability insurance as the Association deems necessary,if any . to protect the Members and the Board of Directors of theAssociation from any liability caused by occurrences or happenings on orabout the Common Areas and Easements which are maintained by theAssociation:
E. Maintaining workmen 's compensation insurance for the employees of theAssociation:
F. Purchasing all goods . supplies . labor . and services reasonably necessaryfor the performance of the obligations set forth herein:
G. Establishing and m:. :ntaining such adequate cash reserves as theAssociation may . in its sole and absolute discretion . deem reasonablynecessary for the periodic maintenance, repair, and replacement of theimprovements which it is responsible to maintain . In this regard, due tothe type and nature of the improvements to be constructed on the CommonAreas and Easements which are maintained by the Association, a reservefund is not anticipated to be necessary for same . and any repair orreplacement of same will be accomplished by special assessment.
H. Providing for and payment of any utility services for Common Areas:
Entering into such agreements and tzking such actions as are reasonablynecessary and convenient for the accomplishment of the obli gations setforth above and the operation and maintenance of the Property as afirst-class . single family residential developmen':
~ .
Granting licenses . easements . and other agreements for the use ofCommon Areas:
K .
Such other matters as are provided for in this Declaration, the Articles ofIncorporation . and tl :e By-Laws.
Section 6 .05 Articles and By-Laws . The manner in which the Association holds
meetings and attends to other corporate formalities shall he controlled by the provisions of the
By-Laws . the Articles . and this Declaration, which Declaration shall control in tile event of
conflict . The Board of Directors of the .Association shall he elected by majority vote of the total
votes cast by both classes of the member-snip at a meeting attended by a quorum as called for
by the Bylaws .
F. Association are turned over to the Members by the Declarant . the Members shall be required
Section 6.06 Transition to Board . Prior to the time that the operations of the
at the Association's offices . Upon receipt of the corporate books, accounting records and written
notice of Declarant's intent to turn over the operations of the Association, the Members shall
notify Declarant in writing within forty-five (45) days of any claims or disputes with regard to
the operations of the Association by the Declarant which have arisen subsequent to December
31 of the preceding year including the collection of assessments, maintenance of reserve
accounts, and other matters falling within the realm of responsibility of the Association . In the
event that such claims or disputes are not presented in writing to the Declarant within the time
periods set forth above, such claims and disputes shall be deemed forever waived, relinquished.
and abandoned . Any valid and timely written claims or disputes presented to the Declarant shall
he resolved promptly between the Members and Declarant.
Section 6 .07 Authority of Board to Adopt Rules . The Board shall be empowered to
adopt, amend . or repeal such rules and regulations as it deems reasonable and appropriate
(collectively the "Rules") . which shall be bindin g upon all persons subject to this Declaration
and shall govern the use and/or occupancy of the Property . The Rules may also include the
establishment of a system of tines and penalties . The Rules shall govern such matters as the
Board deems to be in furtherance of the purposes of the Association . including, without
► imitation, the use of the Common Areas and Easements which are maintained by the
Association . The Rules may be amended at an}' special or regula r meeting of the Board. The
Rules . if and when adopted . shall be deemed incorporated herein by this reference and shall have
the same force and effect as if they were set forth in and were part of this Declaration and shall
be binding on all persons having any interest in . or making any use of, any par, of the Property.
whether or not copies of the Rules are actually received by such persons . The Rules, as ad r.pted,
amended . or repealed . shall h available for review at the principal office of the Association to
Association . When the operations of the Association are turned over to the Members by the
Declarant . the Declarant shall deliver all corporate books and accounting records to the Members
and reserve accounts. and other matters falling within the realm of responsibility of the
disputes with regard to the operations of the Association by the Developer or Declarant . during
tile immediately preceding calendar year. including the collection of assessments, maintenance
by February 15 of each year to report and submit to the Association . in writing. any claims or
20
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each person reasonably entitled thereto . It shall be the responsibility of each person subject to
the Rules to review, and keep abreast of any changes in . the provisions thereof . In the event of
any conflict between any provision of the Rules and any provisions of this Declaration, or the
Articles or By-Laws . the provisions of the Rules shall be deemed to be superseded by the
provisions of this Declaration, the Articles or By-Laws to the extent of any such conflict.
Section 6.08 Non-Liability of Officials and Indemnification . To the fullest extent
permitted by law, neither Declarant . the Board, nor any other committees of the Association nor
any member thereof, nor any officers, directors, or employees of the Declarant or of the
Association, shall be liable to any Owner or to the Association or any other person for any
damage, loss, or prejudice suffered or claimed on account of any decision, course of action, act.
inaction, omission, error, negligence . or the like made in good faith and which Declarant, the
Board, or such committees or officers reasonably believed to be within the scope of their
respective duties . To the fullest extent permitted by law Declarant . and every director, officer.
or committee member of the Association and of the Declarant (to the extent a claim may be
brought by reason of Declarant's appointment, removal, or control over members of the Board
or its control over the Association or any committee thereof) shall be indemnified by the
Association . Every other person serving as anemployee or direct agent of the Association, or
otherwise acting on behalf of. and at the request of, the Association . may, in the discretion of
the Board, be indemnified by the Association . Any such indemnification shall be limited to all
expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon such
person in connection with any proceeding to which he/she may be a party or in which he/she
may become involved, by reason of his/her being or having served in such capacity on behalf
of the Association (or in the case of Declarant by reason of having appointed, removed.
controlled, or failed to control members of the Board, or controlled, or failed to control the
Association), or incurred in any settlement thereof, whether or not he/she is a director, officer
or member of a committee or serving in such other specified capacity at the time such expenses
are incurred.
Section 6 .09 Managing Agent . All powers . duties and rights of the Association or the
Board, as provided by law and herein . may he delegated to a managing agent under a
management agreement : provided, however, that no such delegation shall relieve the Association
of its obligation, to perform any such delegated duty . Any agreement for professional
21
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/
management shall not exceed a term of one year, which term may be renewed by agreement of
the parties for successive one-year periods . Any such agreement shall provide for termination
by either party with or without cause and without payment of a termination fee upon 90 days'
written notice; provided, however, that the Association may terminate the agreement for cause
upon 30 days' written notice . The Association is expressly authorized to contract with Declarant,
or an affiliate of Declarant . to provide management services or to perform other duties of the
Association or the Board ; provided, however, that the compensation to be paid to Declarant or
its affiliate, under such contract shall not exceed a reasonable amount consistent with
compensation paid to professional managers performing similar services in accordance with the
standards of the industry.
Section 6 .10 Disputes. In the event of any dispute or disagreement between any Owners
or any other persons subject to this Declaration relating to the Property or any question of
interpretation or application of the provisions of this Declaration, the Articles, By-Laws, or
Rules, this Declaration shall control . If the subject is not governed by this Declaration, a
determination thereof by the Board shall he final and binding on each and all of such persons,
subject to the right of any party to seek declaratory relief. The Board may, at its election.
delegate the resolution of such dispute or disagreement to a committee appointed by the Board.
Section 6.11 Records and Accounting . The Association shall keep, or cause to be kept,
true and correct books and records of account at the sole cost and expense of the Association
in accordance with generally accepted accounting principles . Such books and records, together
with current copies of this Declaration, the Articles, By-Laws, and Rules shall be available for
inspection by all Owners and First Mortgagees of record at reasonable times during regular
business hours, and shall specify reasonable detail all expenses incurred and funds accumulated.
Such records, books, and accounts shall be kept for a period of at least two years after
preparation .
ARTICLE VII
INSURANCE
Section 7 .01 Insurance Requirements . The Association shall purchase and maintain the
following types of insurance :
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A . Commercial General Liability and Property Insurance . Commercial
general liability insurance covering bodily injury and property damage liability insurance
covering all Common Areas and all other areas under the jurisdiction or control of the
Association. Such insurance policy or policies shall contain . if available, a -sevcrahility of
interest" clause or endorsement which shall preclude the insurer from denying the claim of an
Owner because of negligent acts of the Association or of any other Owners.
The scope of coverage of such policy or policies must include all other coverage
in the kinds and amounts commonly required by private institutional mortgage investors for
projects similar in construction, location and use to the Property . Coverage shall be for at least
one million dollars (51 .000 .000.00) combined single limit . Such coverage shall include, without
limitation, legal liability of the insureds for property damage, bodily injuries, and deaths of
persons in connection with the operation, maintenance, or use of the Common Areas and
Easements which are maintained by the Association, as well as such other coverage as may be
deemed necessary and proper by the Board.
B. Workmen 's Compensation Insurance. Workmen 's Compensation insurance
to the extent necessary to comply with any applicable laws.
Section 7 .02 Waiver of Subrogation ; Claims Against Declarant, etc . Every policy of
insurance obtained by the Association shall contain an express waiver, if available, of any and
all ri ghts of subrogation against Declarant . Developer, the Board, and such other persons or
entities affiliated with the Association such as a manager and their representatives, members and
employees and a provision, if available, preventing any cancellation or modification thereof
except upon at least thirty (30) days' written notice to the insureds and their First Mortgagees.
if known, servicing Mortgages with the Federal National Mortgage Association.
Liability insurance hereinabove specified shall name as separately protected insureds
Declarant . Developer, the Association, the Board, and such other persons or entities affiliated
with the Association such as a manager and their representatives, members and employees as
their interest may appear with respect to any liability arising out of the maintenance or use of
any insured property.
To the extent that each such policy will not be voided or impaired thereby, the
Association hereby waives and releases all claims against the Declarant, the Board, the
Developer and such other persons or entities named in said insurance policies, and against agents
23
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and employees of each of the foregoing . with respect to any loss covered by such insurance,
whether or not caused by negligence of or breach of any agreement by said persons, but only
to the extent that insurance proceeds are received in compensation for such loss.
Section 7.03 Insurance Premiums. Premiums for insurance purchased or obtained by
the Association shall he a common expense payable through assessments of Lots and all such
insurance coverage obtained by the Board shall be written in ' the name of the Association.
Section 7.04 Additional Optional Insurance by Owner. In addition to the aforesaid
insurance required to he carried by the Association, each Owner shall, at his/her own expense.
carry any and all other insurance deemed advisable : however, if available, said policy or policies
shall provide that there shall be no contribution or offset between policies of the Association and
policies an individual Owner may have in effect. The Association shall have no duty whatsoever
to insure, protect or maintain real or personal property located upon any Lot . It shall be the
individual responsibility of each Owner at his/her own expense . to provide as he/she sees fit.
Owner's liability insurance, theft and other insurance covering personal and real property of the
Owner .
Section 7.05 Condemnation/Destruction.
A.
Condemnation.
(1) Taking . The term "taking", as used in this Section, shall mean
either (a) condemnation by eminent domain or (b) sale under threat of condemnation.
(2) Authority of Board . In the event of a threatened taking of all or
any portion of the Common Areas, the Members hereby appoint the Board of the Association
and such persons as the Board or the Association may delegate to represent all of the Members
in connection with the taking . The Board shall act in its sole discretion with respect to any
awards being made in connection with the taking and shall be entitled to make a voluntary sale
to the condemnor in lieu of engaging in a condemnation action.
(3) Partial Taking . In the event of a taking of less than all of the
Common Areas, the rules as to restoration and replacement of the Common Areas and the
improvements thereon shall apply as in the case of destruction of improvements upon the
Common Areas .
(4) Distribution of Proceeds . Any awards received on account of the
taking shall be paid to the Association . In the event of a total taking . the Board shall retain any
24
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award in the general funds of the Association . Notwithstanding anything to the contrary in this
Section . the distribution of any award or awards for a taking of all or any portion of the
Common Areas shall be subject to the prior rights of Mortgagees.
B .
Destruction.
(I) Duty of Association . In the event of a partial or total destruction
of the Common Areas . Common Property or improvements thereon, it shall be the duty of the
Association to restore and repair the same to their former condition as promptly as is
practicable . and in a lawful and workmanlike manner. The Association shall not he entitled to
use hazard proceeds for losses to any Common Areas for other than the repair, replacement or
reconstruction of such improvements . A Reconstruction Assessment, with each Owner
contributing a like sum . may be levied by the Association to provide the necessary funds for
such reconstruction and repair . over and above the amount of any insurance proceeds available
for such purpose . In the event any excess insurance proceeds remain, the Board shall retain
such sums in the general funds of the Association . Notwithstanding anything to the contrary
contained in this Section 7 .05, the distribution of any insurance proceeds for any damage or
destruction to the Common Areas shall be subject to the prior rights of Mortgagees whose
interest may be protected by said policies.
ARTICLE VIII
OWNERSHIP, USE AND MANAGEMENT
OF THE COMMON PROPERTY
Section 8 .01 Owner's Easements of Enjoyment . Every Owner shall have a right and
easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass
with title to every Lot subject to the provisions hereof.
Section 8 .02 Conveyance of Common Areas . Declarant shall grant and convey to the
Association, and the Association shall receive ownership of, the Common Areas prior to the
closing of sale of a Lot by Declarant to an Owner . Upon such conveyance and grant, the
Association shall succeed to all rights, duties and powers with respect to the Common Areas as
prescribed by law, and set forth in the Articles . By-Laws and this Declaration.
Section 8 .03 Damage or Destruction of' Property . In the event any Common Area is
damaged or destroyed by an Owner or any of his/her guests . tenants . licensees, agents, or
25
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members of his/her family, such Owner shall be liable therefor to the extent of liability imposed
by local law, and such Owner does hereby irrevocably authorize the Association to repair the
damaged property, and the Association shall so repair the damaged property in a good
workmanlike manner. The Owner shall then repay the Association in the amount actually
expended for such repairs . Each Owner further agrees that these charges for repairs, if not paid
within ten (10) days after completion of the work, shall be delinquent and shall become a lien
upon Owner's Lot and shall continue to be a lien until fully paid . The lien shall be subordinate
to any First Mortgage or encumbrance on the subject property . Said charges shall bear interest
from the date of delinquency at the rate of twelve percent (12%) per annum . The amount of
principal and interest owed by the Owner to the Association shall be a debt, and shall be
collectible by any lawful procedure allowed by the laws of the State of Arizona.
Section 8 .04 Restriction on Conveyance Of Common Areas and Facilities . The
Common Areas and facilities owned by the Association. may not, by act or omission, be
abandoned, partitioned, subdivided, encumbered, sold or transferred without the prior written
approval of two-thirds (2/3) of the Eligible Mortgage Holders (based upon one vote for each
mortgage owned) or of the Owners (other than Developer or Declarant) except that : (I) the
Association shall at all times have the right to grant and convey to any person or entity
easements, or rights of way, in, on . over, or under any Common Areas for the purpose of
constructing, erecting, operating or maintaining thereon, therein and thereunder (a) temporary
overhead or permanent underground lines, cables, wires, conduits, or other devices for the
transmission of electricity for lighting . heating, power, telephone, cable T .V., and other
purposes ; (b) sewers, storm drains and pipes, drainage easements, water systems, water, heating
and gas lines or pipes ; and (c) such improvements as may be permitted under of this
Declaration, and (2) Declarant shall have the right during the pendency of Class B membership
to grant reasonable easements over, across, or under Common Areas consistent with the
purposes hereof.
Section 8.05 Restriction on Further Subdividing or Resubdividing . Declarant shall not
cause any further subdividing or resubdividing of the Property without furnishing prior written
notice to the Owners and obtaining the prior written approval of the Pima County Board of
Supervisors .
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Section 8.06 Payment of Taxes or Insurance by Mortgagees. The First Mortgagees of
Lots shall have the right, jointly or singly . to pay taxes or other charges or assessments which
are in default and which may or have become a lien against the Common Areas and may pay
overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the
lapse of a policy for the Common Areas, and any First Mortgagee making any such payment
shall he owed immediate reimbursement therefor from the Association.
ARTICLE IX
COVENANTS FOR MAINTENANCE ASSESSMENTS
Section 9.01 Creation of the Lien and Personal Obligation to Pay Assessments . Each
Owner, by acceptance of a deed to any Lot, whether or not it shall be so expressed in such deed
is deemed to covenant and agree to pay to the Association : (1) annual assessments or charges.
and (2) special assessments for improvements, such assessments to be established and collected
as hereinafter provided . The annual and special assessments, together with interest, costs, and
reasonable attorneys' fees, shall be a charge on the Lot and shall be a contingent upon the Lot
against which each assessment is made . Delinquent assessments, together with interest, costs,
and reasonable attorneys ' fees, shall also be the personal obligation of the person who was the
Owner of such Lot at the time when the assessment was levied . The personal obligation for
delinquent assessments shall not pass to successors in title unless expressly assumed by them.
Section 9.02 Purpose of Assessments . The assessments levied by the Association shall
be used exclusively to promote (i) the recreation, health, safety, and welfare of the Members
and their guests ; (ii) the improvement and maintenance of the Common Areas and Easements
which are maintained by the Association ; (iii) insuring the Common Areas and Easements which
are maintained by the Association ; and (iv) all purposes set forth in the Articles . By-Laws and
this Declaration.
Section 9 .03 Maximum Annual Assessment.
A . Until January 1 of the y^ar immediately fo!lowin g the conveyance of the
first Lot by Declarant to an Owner, the maximum annual assessment for each Lot shall be
FIFTY AND NO/100 ($50 .00) DOLLARS . Within thirty (30) days prior to the end of each
calendar year (January I through December 31) and subject to the provisions of Section 9 .03
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B hereof, the Board of Directors shall estimate the total expenses anticipated for the coming year
and shall determine the annual assessment necessary to generate the required revenues.
B. Subject to Section 9 .03 C hereof, the Board of Directors shall not increase
the annual assessment by an amount greater than either (i) six percent (6%) of the amount of the
preceding annual assessment : or (ii) the percentage increase in the cost of living index for "All
Items, All Cities' as reflected by the Consumer Price Index published by the Bureau of Labor
Statistics of the United States Department of Labor for all Urban Consumers (hereinafter called
the "Cost of Living Index Number"), whichever is greater . In the event that the Bureau of Labor
Statistics shall fail to publish a comparable Cost of Living Index Number during any such years.
but a comparable Cost of Living Index Number shall be published by any governmental agency
of the United States in place thereof, then such comparable index number shall be used for the
purpose of adjusting the annual assessment under the provisions of this Section 9 .03 with the
same force and effect es the Cost of Living Index Number of the Bureau of Labor Statistics.
C. Any increase by the Board of Directors in the annual assessment which is
greater than the amount permitted under Section 9 .03 B hereof must be first approved by a
two-thirds (2/3) vote of each Class of Members who are voting in person or by proxy at a
meeting duly called for this purpose.
Section 9.04 Special Assessment for Improvements . In addition to the annual
assessments authorized above, the Association may levy, in any assessment year, a special
assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost
of any construction, reconstruction, repair or replacement of an improvement of the Common
Areas and Easements which are maintained by the Association, including fixtures and personal
property related thereto . provided that any such assessment shall have the assent of two-thirds
(2/3) of the votes of each Class of Members who are voting in person or by proxy at a meeting
duly called for this purpose.
Section 9.05 Notice and Quorum for an Action Authorized Under Section 9 .03 C and
Section 9 .04 . Written notice of any meeting called for the purpose of taking action authorized
tinder Section 9 .03 C and Section 9 .04 shall be sent to all Members not less than thirty (30) days
nor more than sixty (60) days in advance of the meeting . At the first such meeting called, the
presence of Members or of proxies entitled to cast sixty percent (60%) of all the votes of each
class of membership shall constitute a quorum . If the required quorum is not present . another
meeting may be called subject to the same notice requirement, and the required quorum at the
subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting . No
such subsequent meeting shall be held more than sixty (60) days following the preceding
meeting.
Section 9 .06 Uniform Rate of Assessment . Both annual and special assessments must
he fixed at a uniform rate for all Lots . However, and subject to the limitations set forth in
Section 9.03 B hereof, said uniform rate may be revised periodically to reflect revisions in the
annual assessments based on actual operating cost of the Association . Notwithstanding the above.
the amount required to be paid toward regular annual and special assessments for the Lots owned
by Declarant which are neither leased, nor rented, nor otherwise occupied as a Dwelling Unit
shall be fixed at twenty-five percent (25%) of the assessment rate for the other Lots ; and further
provided, however, that in the event all assessments, and all other income, from whatever
source, due to the Association fail to equal or exceed the actual expenses incurred by the
Association during any particular twenty-five (25%) percent annual assessment period because
of such partial Declarant assessment . then Declarant shall, upon written notice from the
Association, pay a sufficient amount, up to'the amount of full parity on such assessment based
on the level of assessments for that year, to the Association to meet any such shortfall so long
as (a) such notice must be given within 90 days after the end of each annual assessment period
and is waived if not made in such timely manner (such final 90 day period to terminate 90 days
from the date of closing of the last Lot conveyed by Declarant), and notwithstanding any
contrary provision of this Declaration (b) Declarant shall have no obligation for any such
shortfall caused by any decrease in assessments, including without limitation the levying of any
assessment in an amount less than the maximum for that annual assessment period, or by
expenditures for capital improvements, unless the same has previously been approved in writing
by Declarant ; and further provided, that at the time any Lot owned by Declarant is leased.
rented, or ::. sidentially occupied, that Lot shall thereafter . in subsequent periods, be assessed at
the uniform rate of assessment for privately owned Lots.
Section 9 .07 Date of Commencement of Annual Assessments ; Due Dates . The annual
assessments provided for herein shall commence as to all Lots on the first day of the month
following the conveyance of a Lot to an Owner . The first annual assessment shall be adjusted
according to the number of months remaining in the calendar year . The Board of Directors shall
fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of
each annual assessment period . Written notice of the annual assessment shall be sent to every
Owner subject thereto in the event of its increase or decrease from the last annual assessment.
The due dates shall be established by the Board of Directors . The Association shall, upon
demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association
setting forth whether the assessments on a specified Lot have been paid . A properly executed
certificate of the Association as to the status of the assessments on a Lot is binding upon the
Association as cf the date of its issuance.
Section 9.08 Effect of Non-Payment of Assessments ; Remedies of the Association.
Each Owner shall be deemed to covenant and agree to pay to the Association the assessment
provided for herein, and agrees to the enforcement of the assessment in the manner herein
specified . All delinquent assessments shall bear interest at an interest rate not to exceed fifteen
percent (15%) per annum, and late payments shall first be credited toward interest due, then
towards assessments first due. In the event the Association employs an attorney for collection
of any assessments, whether by suit of otherwise, or to enforce compliance with or specific
performance of the terms and conditions of this Declaration, or for any other purpose in
connection with the breach of this Declaration . each Owner agrees to pay reasonable attorneys '
fees and costs thereby incurred, in addition to any other amounts due or any other relief or
remedy obtained against said Owner . In the event of a default in payment of any such assessment
when due, in which case the assessment shall be deemed delinquent, and in addition to any other
remedies herein or by law provided, the Association may enforce each such obligation in the
manner provided by law or in equity, or without any limitation to the foregoing, by either or
both of the following procedures.
A. Enforcement by Suit . The Board may cause a suit at law to becommenced and maintained in the name of the Association against anOwner to enforce each such assessment obligation. Any judgmentrendered in any such action shall include the amount of the delinquency,together with interest thereon from the date of delinquency until paid.court costs, and reasonable attorneys' fees in such amount as the Courtmay adjudge against the delinquent Owner or Member.
B. Enforcement by Lien . There is hereby created a right to record a claimof lien on each and every Lot to secure payment to the Association of anyand all assessments levied against any and all Owners toget.ter withinterest thereon from the date of delinquency until paid . and all c.,sts of
collection which may be paid or incurred by the Association in connection " -therewith. including reasonable attorneys fees and costs . At any time afteroccurrence of any default in the payment of any such assessment, theAssociation, or any authorized representative may . but shall not berequired to . make a written demand for payment to the defaulting Owner.. ..''?''Said demand shall state the date and amount of delinquency . Each defaultshall constitute a separate basis for demand but any number of defaultsmay be included within a single demand or claim of lien . If suchdelinquency is not paid within ten (10) days after delivery of suchdemand, or. even without such a written demand being made, theAssociation may elect to file and record a claim of lien on behalf of theAssociation against the Lot of the defaulting Owner . Such a claim of lienshall be executed and acknowledged by any officer of the Association,recorded in the office of the County Recorder for Pima County . Arizona,and shall contain substantially the following information:
(2) The legal description of the Lot against which claim of lien ismade;
(3) The total amount claimed to be due and owing for the amount ofthe delinquency, interest thereon, collection costs, and reasonableattorneys' fees and costs (with any proper offset allowed);
(4) A statement that the claim of lien is made by the Associationpursuant to this Declaration;
(5) A statement that a lien is claimed against said Lot in an amountequal to the amount stated:
(6) A statement that the claim of lien will also extend to allassessments which become due but are not paid from the date ofthe recording of the claim of lien to the date of payment of allamounts set forth therein (including interest thereon, reasonableattorneys' fees, costs and collection), and that the claim of lienwill only be deemed satisfied and released when the Owner iscurrent in the payment of all such amounts.
Upon recordation of a duly executed original or copy of such a claim of lien, andthe mailing of a copy thereof to said Owner, the lien claimed therein shallimmediately attach and become effective in favor of the Association as a lienupon the Lot . Such a lien shall- liaue priority over all claims of lien createdsubsequent to the recordation of the claim of lien thereof, except only tax lien'sfor real property taxes on any Lot . assessments on any Lot in favor of anymunicipal or other governmental assessing unit . 2nd the lien of any FirstMortgage .
Any such lien may be foreclosed by appropriate action in court or in the mannerprovided by law for the foreclosure of a realty mortgage or trust deed as set forthby the laws of the State of Arizona, as the same may be changed or amended.The lien provided for herein shall be in favor of the Association and shall be forthe benefit of all other Owners . The Association shall have the power to bid inat any foreclosure sale and to purchase, acquire, hold lease, mortgage, andconvey any Lot . In the event such foreclosure is by action in court, reasonableattorneys' fees, court costs, title search fees, interest and all other costs andexpenses shall be allowed to the extent permitted by law . Each Owner herebyexpressly waives any objection to the enforcement and foreclosure of this lien inthis manner.
Section 9.09 No Exemption of Owner. No Owner is exempt from liability for payment
of assessments by waiver of the use of enjoyment of the Common Areas, or by abandonment
of a Lot.
Section 9.10 Subordination of the Lien to Mortgages. The lien of the assessments
provided for herein, including without limitation any fees, costs, late charges, or interest which
may be levied by the Association in connection with unpaid assessments, shall be subordinate
to the lien of any First Mortgage . Sale or transfer of any Lot shall not affect the assessment lien.
However, the sale or transfer of any Lot pursuant to foreclosure of a First Mortgage or a
trustee's sale pursuant to power of sale or any proceeding in lieu thereof, including deed in lieu
of foreclosure, or cancellation or forfeiture of an executory land sales contract, shall extinguish
the lien of such assessment as to payments which become due prior to such sale or transfer or
foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or
cancellation or forfeiture of any such executory land sales contract ; provided, however, that any
such delinquent assessment charges, including interest, late charges, costs, and reasonable
attorneys' fees, which are extinguished as provided herein . may be reallocated and assessed to
all Lots as a common expense . No such sale, transfer . foreclosure, or any proceeding in lieu
thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture of such executory
land sales contract shall relieve any Owner of a Lot from liability for any assessment charges
thereafter becoming due . nor from the lien thereof . In the event of foreclosure of a First
Mortgage or the taking of a deed in lieu thereof, such First Mortgagee shall not be liable for
unpaid assessments or other charges which accrued prior to the acquisition of title to the Lot in
question by such First Mortgagee .
Section 9 .11 Mortgage Protection and Additional Assessment as Common Expense.
Notwithstanding and prevailing over any other provisions of this Declaration, or the
Association's Articles or By-Laws, or the Rules, the following provisions shall apply to and
benefit each First Mortgage of a Lot:
A. First Mortgagees shall not in any case or manner prior to acquiring title
to a Lot be personally liable for the payment of any ass .ssment or charge, nor for the
observance or performance of any covenant, restriction, regulation, Rule, Article or By-Law,
except for those matters which are enforceable by injunctive or other equitable actions, not
requiring the payment of money, except as hereinafter provided.
B. During the pendency of any proceeding to foreclose the First Mortgage,
including any period of redemption, the First Mortgagee (or receiver appointed in such action)
may, but need not, exercise any or all of the rights and privileges of the Owner of the
mortgaged Lot, including but not limited to, the right to vote as a Member of the Association
to the exclusion of the Owner's exercise of such rights and privileges.
C. At such time as the First Mortgagee shall become record Owner of a Lot
said First Mortgagee shall be subject to all of the terms and conditions of this Declaration,
including but not limited to the obligation to pay for all assessments and charges accruing
thereafter . in the same manner as any Owner.
D. Any provisions contained in this Declaration to the contrary
notwithstanding . unless at least two-thirds (2/3) of the Lot Owners (other than the Declarant or
Developer) or two-thirds (2/3) of the First Mortgagees (based upon one vote for each mortgage
held) have given their prior written approval, the Association shall not be empowered or entitled
to : (i) change the method of determining the obligations, assessments, dues or other charges
which may be levied against a Lot Owner ; or (ii) by act or omission, change . waive or abandon
any scheme of regulations, or enforcement thereof, pertaining to the maintenance of the
Common Areas and Easements.
E. First Mortgagees are hereby granteti the right to jointly, or singly pay taxes
or other charges which are in default and which may or have become a charge against any
Common Areas owned by the Asse iation . and such First Mortgagees may, jointly or singly.
pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage
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on the lapse of a policy, for such Common Areas and any First Mortgagees making such
payments may be owed immediate reimbursement therefor from the Association.
F. Nothing in this Declaration shall in any manner be deemed to give a Lot
Owner, or any other party, priority over any rights of a First Mortgagee of a Lot pursuant to
the terms of such First Mortgagee ' s mortgage in the case of a distribution to a Lot Owner of
insurance proceeds or condemnation awards for losses to or a taking of any Lot or any part of
the Common Areas owned by the Association . Each First Mortgagee shall be entitled to timely
written notice of such loss or taking.
G. Each First Mortgagee shall, upon notice to the Association, be entitled to
a written notification from the Association of any default in the performance by the Owner of
a Lot encumbered by the Mortgage in favor of such First Mortgagee of any obligation under this
Declaration or under the Articles of Incorporation, By-Laws, or Rules of the Association which
is not cured within sixty (60) days.
H. Each First Mortgagee shall, upon written notice to the Association, be
entitled to (i) inspect the hocks and records of the Association during normal business hours ; (ii)
receive as annual financial statement of the Association within ninety (90) days following the
end of any fiscal year of the Association ; and, (iii) receive written notice of all meetings of the
Association, and designate a representative to attend such meetings.
I. Upon written request to the Association, identifying the name and address
of the holder, insurer or guarantor of a First Mortgage and the Lot number or address, an
Eligible Mortgage Holder, insurer or guarantor shall be entitled to timely written notice of:
(1)
Any condemnation loss or casualty affecting a material portion ofthe Property:
(2) Any s = xty (60) day delinquency in the payment of assessments:
(3) Any lapse, cancellation or material modification of any insurancepolicy or fidelity bond : and
(4) Any proposed action that requires the consent of a specifiedpercentage of Eligible Mortgage Holders.
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ARTICLE X
GENERAL PROVISIONS
Section 10.01 Term. The covenants, conditions and restrictions of this Declaration shall
remain in full force and effect for a period of twenty-five (25) years from the date this
Declaration is recorded . Thereafter, they shall be deemed to have been renewed and
automatically extended for successive periods of ten (10) years each, unless amended or repealed
by the written consent of at least seventy-five (75%) percent of the Owners.
Section 10.02 Amendments. This Declaration may be amended by an instrument in
writing, signed and acknowledged by the President and Secretary of the Association, certifying
that such Amendment has been approved by the vote or written consent (with or without as
Association meeting : subject, however, to the voting rights set forth herein) of the then Owners.
including Declarant . of not less than seventy-five percent (75%) of the Lots, and such
amendment shall be effective upon its recordation with the County Recorder of Pima County,
Arizona.
Notwithstanding anything to the contrary contained in this Declaration, if Declarant shall
determine that any amendments to this Declaration or any amendments to the Articles of
Incorporation or By-Laws of the Association shall be necessary in order for existing or future
mortgages• deeds of trust, or other security instruments to be acceptable to the Veterans
Administration, the Federal Housing Administration of the U .S . Department of Housing and
Urban Development, the Federal National Mortgage Association, or the Federal Home Loan
Mortgage Corporation, then . Declarant shall have and hereby specifically reserves the right and
power to make and execute any such amendments without obtaining the approval of the Owners.
Members, or First Mor.gagees.
In addition to the requirements set forth elsewhere in this Declaration, the consent of
fifty-one (51%) percent of to Eligible Mortgage Holders . based on one vote for each mortgage
held, shall be required to aid or amend any provisions of this Declaration which establish.
provide for, govern or regulate any of the following:
A. Voting rights:
B. Assessments, assessment liens or subordination of assessment liens:
-C .
Responsibility for maintenance and repairs:
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t
D. Reallocation of interests in the Common Areas, or rights to their use;
E. Boundaries of any Lot;
F. Convertibility of Lots into Common Areas or vice versa;
G. Expansion or contraction of the Property or the addition, annexation orwithdrawal of property to or from the Property;
H. Insurance;
I. Leasing of units;
J. Imposition of any restriction on a Lot Owner's right to sell or transfer hisor her Lot;
K. Restoration or repair of the Property (after a hazard damage or partialcondemnation) in a manner other than that specified herein;
L. Any action to terminate the legal status of the Property after substantialdestruction or condemnation occurs ; or
M. Any provisions which are for the express benefit of mortgagees, EligibleMortgage Holders, insurers or guarantors of first mortgages on the Lots.
The consent of sixty-seven (67%) percent of the Eligible Mortgage Holders, based on one
vote for each mortgage held, shall be required for the termination of the legal status of the
Association for reasons other than the substantial destruction or condemnation of the Property.
Proposed amendments other than as set forth above, of an immaterial nature may be
made pursuant to the same stipulations set forth above, except that the consent of an Eligible
Mortgage Holder who fails to respond to a proposal within 30 days of the proposal being made,
shall be deemed given.
Section 10 .03 Enforcement and Non-Waiver.
A. Enforcement . Except as otherwise provided herein, the Association or any
Owner shall have the right to enforce by any proceeding at law or in equity, all restrictions,
conditions, covenants, reservations, liens or charges now or hereafter imposed by provision of
this Declaration.
Failure by the Association or any Owner, to enforce any covenant or restriction
herein contained shall in no event be deemed a waiver of the right to do so thereafter.
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S
2
Further . the Association shall have the authority to bring an action at law or in
equity to enforce any of the provisions of this Declaration . Expenses of enforcement, in the
event the Association is a substantially prevailing party, shall be paid to the Association by the
Owner against whom enforcement action was commenced . The Association shall have the right
to enter upon the property of any Owner for the purpose of repairing, modifying, or demolishing
improvements which are not in conformance with the provisions of this Declaration and all
expense incurred in connection therewith shall be paid to the Association by the Owner in
violation .
B. Violation of Law . Each and every provision of this Declaration and any
amendment hereto shall be subject to all applicable governmental ordinances and subdivision
regulations and any future amendments thereto . Any violation of any state, municipal or local
law, ordinance or regulation pertaining to the ownership, occupation or use of the Property is
hereby declared to be a violation of these Restrictions and subject to any or all of the
enforcement procedures set forth herein or in the By-Laws.
C. Remedies Cumulative . Each remedy provided herein is cumulative and
not exclusive .
D. Non-Waiver. Failure by the Board, the Association or by any Owner to
enforce any of the provisions hereof at any time shall not constitute a waiver of the right
thereafter to enforce any of such provisions or any other provisions.
Section 10 .04 Construction.
A. Interpretation. The provisions of this Declaration shall be liberally
construed to effectuate the purpose of creating a uniform plan for the development and operation
of the Property . This Declaration shall be construed and governed by the laws of the State of
Arizona .
B. Restrictions Severable . Notwithstanding any other provision hereof, each
of the provisions of this Declaration shall be deemed independent and severable, and the
invalidity or partial invalidity of any provision or portion thereof shall not affect the validity of
enforceability of any other provision.
C. Rule Against Perpetuities . In the event the provisions hereunder are
declared void by a Court of competent jurisdiction by reason of the period of time herein stated
for which the same shall be effective, then in that event said periods of time shall be reduced
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to a period of time which shall not violate the rules against perpetuities as set forth in the laws
of the State of Arizona.
D. Singular Includes Plural . Unless the context requires a contrary
construction, the singular shall include the plural and the plural the singular, and the masculine,
feminine or neuter shall each include the masculine, feminine and neuter.
E. Captions . All captions and titles used in this Declaration are intended
solely for convenience or reference purposes only and in no way define, limit or describe the
true intent and meaning of the provisions hereof.
Section 10 .05 Delivery of Notices and Documents . Any wri t ten notice or other
documents relating to or required by this Declaration may be delivered eitner personally or by
mail . If by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy
of same has been deposited in the United States mail, postage prepaid, addressed as follows : If
to the Association, at 145 S . Sixth Avenue, Tucson, Arizona, 85701 ; if to an Owner, to the
address of the Owner within the Property ; if to Developer, at 145 S . Sixth Avenue, Tucson,
Arizona, 85701, with a copy to Declarant ; and if to the Declarant, 101 North Wilmot Road,
Tucson, Arizona, 85711, with a copy to the Association ; provided, however, that any such
address may be changed at any time by the party concerned by delivering written notice of
change of address to the Association. Each Owner of a Lot shall file the correct mailing address
of such Owner with the Association, and shall promptly notify the Association in writing of any
subsequent change of address.
Section 10.06 Binding Effect . By acceptance of a deed or acquiring any ownership
interest in any of the Property included within this Declaration, each person or entity, for
himself/herself, or itself, his/her heirs, personal representatives, successors , transferees and
assigns, binds himself/herself, his/her heirs, personal representatives, successors, transferees and
assigns to all of the provisions, restrictions, covenants, conditions, rules and regulations now or
hereafter imposed by this Declaration and any amendments thereof . In addition, each such
person by so doing thereby acknowledges that this Declaration sets forth a general scheme for
the Property and hereby evidences his/ her intent that all the restrictions, conditions, covenants.
rules and regulations contained herein shall run with the land and be binding on all subsequent
and future owners, grantees, purchasers, assignees . and transferees thereof. Furthermore, each
such person fully understands and acknowledges that this Declaration shall be mutually
beneficial, prohibitive and enforceable by the various subsequent and future owners.
Section 10.07 Annexation. Additional property and Common Areas may be annexed by
the Declarant to the Property with the consent of two-thirds (2/3rds) of each Class of Members
and the recordation of a Declaration of Annexation.
Section I0.08 FHA/VA Approval. As long as there is a Class B membership, the
following actions will require the prior approval of the Federal Housing Administration or the
Veterans Administration : annexation of additional properties, mergers and consolidations,
mortgaging of Common Areas, public dedication of Common Areas, and amendment of this
Declaration of Covenants, Conditions and Restrictions.
IN WITNESS WHEREOF, Declarant has executed this Declaration the day, month and
year first above written.
Approved for Execution TITLE GUARANTY AGENCY OFARIZONA, INC., an Arizonacorporation, as Trustee under Trust No.T-1283, as Trustee only and not otherwise
,%By Lazo( //
C-L.-7:
Its Trust Officer
SUBSCRIBED AND SWORN to before me this 28th day of NOVEMBER
1995, by CAROL A .CASTRO asTRUSTOFFICER of TIT E GUARANTYAGENCY OF ARIZONA, INC ., an Arizona corporation . as Trustee under Trust No . T-1283.on behalf of said Trust .